RAJESH KUMAR Vs. UNION OF INDIA
LAWS(J&K)-1999-12-10
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 01,1999

RAJESH KUMAR Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THE petitioners who are 18 in number challenge the order by virtue of which land measuring 62 kanals 6 marlas comprised in khasra no.167 and 168 situate in village Ban Sultan Tehsil R.S.Pura has been acquired under J&K Requisitioning and Acquisition of Immovable Property Act, 1968 (for short RAIP Act). The undisputed facts are that a notice under sub -section (2) of section 3 of the RAIP Act was issued by the Deputy commissioner, Jammu on 3.12.94. Notification u/s 16 of the Act was issued vide SRO 149 dated 8.8.94 by virtue of which Deputy Commissioner, Jammu was empowered to exercise power u/s 21(1) of the Act in respect of the aforesaid land. Finally, the Dy.Commissioner, Jammu vide order dated 7.10.95 passed under sub -section (3) of section 3 and section 4 of the Act requisitioned the aforesaid land which has been broken into different khasra numbers as indicated in the order.
(2.) THE petitioners challenge the order of requisitioning on the following grounds (i) that the land is not required for a public purpose because the army is already in possession of 491 kanals of land in Miran Sahib (ii) that no show -cause notice as required under subsection (2) of section 3 of the Act was served upon the petitioners and (iii) that the petitioners are entitled to ownership rights under LB -6 and S.432, but the mutation in their favour is not being attested because a ban has been imposed by the govt. which is arbitrary as it discriminates similarly situated persons.
(3.) MR . Kalgotra appearing for the petitioners argued that no show -cause notice as required under the Act was served upon the petitioner. His further contention is that the land in fact is required for extension of Golf ground which is not a public purpose and, therefore, the order impugned is bad. Moreover, the petitioners have been cultivating the land ever since 1944 and, therefore, according to the learned counsel were entitled to ownership rights under LB -6 and in the event of land being acquired, they are entitled to compensation. Since mutations have not been attested, therefore, they are not being deprived of the property without payment of compensation. Mr. Bhat, learned counsel for Union of India submitted that the question whether the land is required for a public purpose or not cannot be adjudicated because it is not justiceable. His further contention is that the petitioners are entitled to any compensation, the Union of India will pay the same if the competent authority so decides. The contention of Mr.Kapoor appearing for the State Govt. is that no compensation is payable because the land is owned by the State. He denied that no show -cause notice was served upon the petitioners, because the record speaks to the contrary. On examination of the requisitioning file, I find that the Defence Estate Officer has approached the State Govt. for requisitioning of the aforesaid land as early as in 1990 followed by lengthy correspondence between the Defence Estate Officer and the Deputy Commissioner, Jammu. In the circumstances, it cannot be said that the land is not required for the public purpose. Regarding show -cause notice in terms of sub -sec.(2) of section 3, record further reveals that this notice was forwarded to Tehsildar, R.S.Pura for service upon the land owners. The names of as many as 19 petitioners appear in the notice to whom it was required to be served. Most of them have signed the show -cause notice while some have refused. So it cannot be said that no show -cause notice as required under law was issued. Thus, there is no non -compliance of sub -section (2) of section 3 of the Act. The only question is whether the petitioners are entitled to ownership rights under LB -6 read with S.432. It is admitted that petitioners are in possession of the land. Their case is that they have been cultivating the land since 1947 and, therefore, entitled to ownership. The factual of their possession is admitted by the Addl.Deputy Commissioner, Jammu in his letter dated 13.5.97 addressed to the Defence Estate Officer which is reproduced below: - - "A deputation of the village Ban Sultan met then undersigned and stated that the Army authorities are likely to fence the requisitioned land by putting a barbed wire immediately before the wheat crop is harvested by the Zamindars. The Tehsildar R.S.Pura was asked to furnish a detailed report after visiting the spot. He has reported that previously the land was in the shape of Jungle and it has been brought under cultivation by the fore -father of the occupants for last more than 45/50 years. The occupants of the land were eligible to have the benefit of Govt.order LB -6 and S.432. But due to the ban imposed by the State Govt. about the attestation of such mutations, they have been deprived of the rights. In view of the facts stated above, it is requested that the Army authorities may be asked not to fence the land as the State Govt. is not receiving the rental compensation of the State Land. This is in continuation to this office no.even dated 21.4.97." ;


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